S. Roy, J.
1. The civil revision application has been filed by the plaintiffs-petitioners under the Proviso to Sub-section (8) of Section 14 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1952 (the Bihar Act) against the judgment and decree of the court below by which the suit for eviction of the defendant-opposite party on the ground of personal necessity has been dismissed. At the time of admission of the civil revision application a learned Single Judge (B.P. Singh, J.) noticed the judgment rendered in Shri Udai Banerjee v. Shri P.R. Dutta 1986 PLJR 950 and also noticed the language of the aforesaid Proviso and ordered that the case be heard by a Division Bench. When the matter was listed before the Division Bench, the correctness of the judgment in Shri Udai Banerjee was doubted and it was ordered that the case be heard by a larger Bench. The matter was, therefore, listed before this Bench.
2. In the plaint it was stated that the opposite party was carrying on business in the suit premises as a tenant under the petitioners No. 1 and 5 have learnt tailoring and the building in question was required for carrying on tailoring business jointly by them. The petitioners required the building reasonably and in good faith for their use and occupation.
In the written statement, inter alia, it was stated that the petitioners had already filed Title Suit No. 34 of 1985 for the eviction of the opposite party on the same grounds as prayed for in this suit. By the amendment of the written statement, the opposite party was allowed to introduce the fact that petitioner No. 1 has opened a tailoring shop just in front of the suit premises in his own building and doing his tailoring business there with the assistance of petitioner No. 5.
3. The trial court held that there was relationship of landlord and tenant between the parties. It further held that petitioner Nos. 1 and 5 were trained tailors. It accepted the case of the opposite party that petitioner Nos. 1 and 5 were already running a tailoring shop and, they, therefore, did not require the suit building reasonably and in good faith for their own use and occupation. The suit was dismissed. The plaintiffs have filed this civil revision application.
4. When the application was taken up for hearing, Mr. R.K. Merathia, learned Counsel appearing on behalf of the opposite party submitted that in view of the language of Proviso to Sub-section (8) of Section 14 of the Act, the civil revision application at the instance of the petitioners, plaintiffs in the court below, was not maintainable. Mr. Pradeep Modi, learned Counsel appearing on behalf of the petitioners, submitted that the provision for filing civil revision application under the Bihar Act is similar to the provision in Delhi Rent Control Act, 1958 (the Delhi Act), f his question was considered in Shri Udai Banerjee (supra) and the Division Bench held that the language of Section 25B(8) of the Delhi Act is in pari materia with Section 14(8) of the Bihar Act. The Division Bench held that as the language of both the sections is in pari materia, the interpretation as made by the Supreme Court in Vinod Kumar Chowdhury v. Smt. Narain Devi Taneja : corresponding to must be followed
for interpreting Section 14(8) of the Bihar Act. It held that a civil revision application under Section 14(8) of the Act at the instance of plaintiff whose suit has been dismissed is maintainable.
5. Section 14(8) of the Bihar Act reads as follows:
14 (8). No appeal or second appeal shall lie against an order for the recovery of possession of any premises made in accordance with procedure specified in this section:
Provided that on an application being made within sixty days of the date of the order of eviction the High Court may for the purpose of satisfying itself that an order under the section is according to law, call for the records of the case and pass such order in respect thereto as it thinks fit.
Section 25B (8) of the Delhi Act reads as follows:
No appeal or second appeal shall lie against an order for the recovery of possession of any premises made by the Controller in accordance with the procedure specified in this section:
Provided that the High Court may, for the purpose of satisfying itself that an order made by the Controller under this section is according to law, call for the records of the case and pass such order in respect thereto as it thinks fit.
6. In the judgment of Shri Udai Banerjee (supra), only Section 14(8) of Bihar Act was quoted and Section 25B(8) of Delhi Act was not quoted. The main section in both the Acts, except a few words here and there are in pari materia but the Division Bench, with respect, was clearly wrong in observing that the' Proviso to the two sub-sections of both the Acts are also in pari materia There is a qualitative difference in the two Provisos. Whether the High Court can exercise jurisdiction under the Proviso suo motu or on an application is not at all crucial In Delhi Act, the Proviso empowers the High Court to look into all orders made by the Controller under Section 25B and such orders may be order dismissing the application filed by the landlord or allowing such applications. In other words, the High Court has power to satisfy itself regarding the order of Controller, both where the application for recovery of possession has been dismissed and has been allowed. The Proviso in the Bihar Act provides for filing applications against the order of eviction. The Proviso, therefore, embraces, only order of eviction and not de orders as provided in the Delhi Act The Division Bench clearly erred in interpreting the provisions of the Bihar Act by taking recourse to the language of the Delhi Act. Whether the interpretation given by the Supreme Court to Section 25B(8) of the Delhi Act in Vinod Kumar Chowdhury (supra) is available to Section 14(8) of the Act 1 shall presently discuss.
7. In Delhi Act, application for eviction of a tenant is to be filed before Controller appointed under that Act. When prayer for eviction is made on the around of personal necessity, i.e. under Section 14(1) Clause (e) to the Proviso and on the ground that the landlord being a person to whom a residential premises was allotted by Central Government local authority is asked to vacate it as he owns residential accommodation in the Union Territory of Delhi i.e. under Section 14A(1), the procedure prescribed in Section 25B is to be followed Against order of Controller disposing application for eviction made on grounds other than mentioned in Section 14(1) Clause (e) to the Proviso and Section 14, 14A(1) Section 38 provides for appeal to the Tribunal constituted under the Delhi Act. Against the order of the Tribunal, Section 39 provides for appeal to the High Court, if it involves some substantial question of law.
But where in a case the procedure prescribed in Section 25B is to be followed by the Controller, no appeal under Section 38 before Tribunal in maintainable ; consequently, no appeal under Section 39 can be filed Against the order of the Controller, in such a case, Section 25B(8) provides for revision before the High Court.
8. Under Bihar Act, the landlord is required to file a suit before the the competent civil Court As a suit is filed a decree follows. Before the Bihar Act 1982 all decrees so passed were appealable under Section 96 of the Code of Civil Procedure (the Code) and another appeal under Section 100 the Code. For the first time in the Act of 1982, a distinction was made between a suit for eviction on the ground of personal necessity and as for eviction on other grounds. For the former class of suit, a summary procedure is prescribed in Section 14. The procedure is similar to the procedure prescribed in Section 25B of Delhi Act, except Proviso to Sub-section (8) of both the sections.
9. In the main part of both the sub-sections under both the Acts it has been provided that no appeal or second appeal shall lie against an order for the recovery of possession. Whereas, in Delhi Act in the proviso, the words used are 'an order' in the Bihar Act, the words are 'the order of eviction'. The Supreme Court in Vinod Kumar Chowdhury (supra) held that "order for recovery of possession of any premises" appearing in the main part of Sub-section (8) of Section 25B has to be construed in the context in which it appears as an order deciding an application for recovery of possession of any premises. The Supreme Court therefore, made contextual interpretation of the sub-section It was of the opinion that although in the main section it has been provided that no appeal or second appeal shall lie against an order for the recovery of possession The view of the language used in the proviso all orders whether it be an order for recovery of possession or an order refusing the same passed by the Controller are revisable by the High Court. The orders covered by Sub-section (8) will be all final orders passed by the Controller under Section 25B disposing of application filed by the landlord for recovery of possession. The Supreme Court noticed the proviso and observed as follows:
The Proviso however, has to be read as a legislative measure carved out o the sub-section to which it is appended and the order mentioned therein has to be regarded as an order of the type which the sub-section speaks of, i.e. an order for the recovery of possession of any premises made by the Controller in accordance with the procedure specified in this section.
10. The same words may mean one thing in one context and another in a different context. This is the reason why the decisions on the meaning of particular word or collection of words found in other statutes are scarcely of much value in dealing with specific statute. It is important to notice that both in Sections 25B and 14(8) Proviso has been engrafted.
11 In S. Sundaram Pillai v. V.R. Pattabhiraman the Supreme Court had occasion to deal with the functions of proviso while dealing with the expression 'wilful default' in Tamil Nadu Buildings (Lease and Rent Control) Act. The Supreme Court noticed large number of English and Indian decisions and the books of Craies and Orders. It also noticed that Sarathi in Interpretation of Statutes has quoted the following in regard to a Proviso-
(a) When one finds a Proviso to a section the natural presumption is that, but for the proviso, the enacting part of the section would have included the subject-matter of the proviso.
(b) A proviso must be construed with reference to the preceding parts of the clause to which it is appended.
(c) Where the proviso is directly repugnant to a section, the proviso shall stand and be held a repeal of the section as the proviso speaks the later intention of the makers.
(d) Where the section is doubtful, a proviso may be used as a guide to its interpretation but when it is clear, a proviso cannot imply the existence of words of which there is no trace in the section.
(e) The proviso is subordinate to the main section.
(f) A proviso does not enlarge an enactment except for compelling reasons.
(g) Sometimes an unnecessary proviso is inserted by way of abundant caution.
(h) A construction placed upon a proviso which brings it into general harmony with the terms of section should prevail.
(i) When a proviso is repugnant to the enacting part, the proviso will not prevail over the absolute terms of a later Act directed to be read as supplemental to the earlier one.
(j) A Proviso may sometimes contain a substantive provision.
It held that:
While interpreting a proviso care must be taken that it is used to remove special cases from the general enactment and provide for them separately.
In short, generally speaking, a proviso is intended to limit the enacted provision so as to except something which would have otherwise been within it or in some measure to modify the enacting clause. Sometimes a proviso may be embodied in the main provision and becomes an integral of it so as to amount to a substantive provision itself.
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To sum up, a proviso may serve four different purposes:
(1) qualifying or excepting certain provisions from the main enactment;
(2) it may entirely change the very concept of the intendment of the enactment by insisting on certain mandatory conditions to be fulfilled in order to make the enactment workable;
(3) it may be so embedded in the Act itself as to become in integral part of the enactment and thus acquire the tenor and colour of the substantive enactment himself ; and
(4) it may be used merely to act as an optional addenda to the enactment with the sole object of explaining the real intendment of the statutory provision.
12. I have already noticed how the Supreme Court in Vinod Kumar Chowdhury (supra) read the proviso to Section 25B(8) of the Delhi Act. Although in the main part of Sub-section (8) of Section 14 of Bihar Act "an order for recovery of possession" have been used, in proviso words used are "the order of eviction". It must be held that but for the proviso the main part would have included order refusing eviction. In other words, the main sub-section may embrace order of eviction as well as order refusing eviction, but because of the proviso it must be held that the order mentioned in the proviso is the type of order which the sub-section speaks. By the proviso the power of revision has been provided for particular cases only, i.e., against an order of eviction.
13. The Division Bench in Shri Udai Banerjee (supra) was also of the opinion that the language of Section 14 (8) of the Bihar Act speaks "that no appeal or second appeal shall lie against an order for the recovery of possession of any premises made in accordance with the procedure specified in this section," (Emphasis appears in the judgment). It further observed : "It is, however manifest that on a superficial reading of Section 14(8) of the Act the landlord has not been provided with any remedy in a case lost by him in which he institutes the suit in a civil court of competent jurisdiction for eviction of a tenant either on the ground of personal necessity or on the ground of expiry of period of lease". After recording this finding, the Bench was of the opinion that "it is a gross case of the draftsmen's lossness in choosing the words to be incorporated in that part of the legislative enactment which can well be rectified by the court by making modification and mere correction of careless language really giving the true meaning to be attached thereto and the court is not powerless in that regard because this will not amount to an act of legislation but merely a clarification of the statutory object and intent". In M.G. Wagh and Ors. v. Jay Engineering Works Ltd. , the Supreme Court was called upon to interprete the expression "no person entitled to sell, or procure the sale of the said goods implied in Section 12(2) of the Foreign Exchange Regulation Act, 1947. The argument was that the aforesaid expression does not cover transactions of "exports on sale". The Supreme Court observed as under:
There is no warrant to assume that the Legislature has not made any provision in order to ensure that the full amount of the sale price is repatriated and foreign exchange earned therefrom is not lost to the Nation regardless of whether it is in respect of 'export on sale' or "export for sale". The avowed and the evident object of Section 12 is to ensure that that the Nation does not lose foreign exchange which is very much essential for the economic survival of the Nation. The exporter cannot be allowed to syphon away a part of the foreign exchange or to deprive the Nation of the foreign exchange earned by the exports. Such is the philosophy of Section
12. To take the view that the legitimate National interest in the sphere of preservation of foreign has relevance only in the context of transactions of exports for sales and that Legislature exhibited total unconcern for the foreign exchange earned in the context of transactions of completed sales or consignment sales, is to attribute to the Legislature irrationality, and to impute to the Legislature that it did not know its job inasmuch as it has tackled the problem only partially without any rational basis for excluding the transactions of completed sales from the purview of the legislation which would substantially erode or defeat the purpose of the legislation. When it is equally possible to take the view which would be conclusive to the conclusion that there is no lacuna in the legislation, it would be unreasonable to take the view that the legislation has left a lacuna either by negligence or by lack of foresight or because it did not know its job.
14. One of the cardinal principles of Interpretation of Statutes is that where the language of an Act is clear and explicit, "we must give effect to it, whatever may be the consequences, for in that the words of the Statute speak the intention of the legislature." Craise on Statute Law, 7th Edition, page 65. Further a Statute may not be extended to meet a case for which provision has clearly and undoubtedly not been made. (Ibid page 69). This principle is commonly known as casus omissus, omissions in a statute cannot be supplied by judicial construction. It is well settled that the Legislature does not waste words without any intention and every word that is used by the Legislature must be given its due import and significance. One of the well known of rule of interpretation is that Court in interpreting statute must not legislate. Reference may be made to Ku. Sonia Bhatia v. State of U.P. .
15. The error appeared in the judgment in Shri Udai Banerjee (supra) because Sub-section (8) was not read as a whole i.e. the primary part along with the Proviso, The principle that the statute must be read as a whole is equally applicable to different parts of the same section. The Balesinor Nagrik Cooperative Bank Ltd. v. Babubhai Shankerlal Pandeya . The Division Bench failed to notice that to the generality embodied in the main part of the Sub-section (8), exception was grafted in the proviso. I am of the opinion that the interpretation of Section 14(8) of the Bihar Act given by the Division Bench in Shri Udai Banerjee (supra) with reference to the language used in Section 25B(8) of Delhi Act cannot be sustained.
16. From the judgment of Shri Udai Banerjee (supra) it appeared that the Bench referred to Section 24 of the Bihar Act, which provides for appeal against the order of the Controller, and observed that this section does not provide for appeal from decree passed in a suit. The Bench held that if under Section 14(8) revision may be filed by tenant alone, the Bihar Act then does not provide any forum to the aggrieved landlord-plaintiff. And to provide a forum, the Bench held that an aggrieved landlord-plaintiff may also file a revision under Section 14(8). The language of Section 14(8) when read as a whole and it must be read as a whole, is very clear. There is no ambiguity. The draftsman was not "loose in choosing the words". There is no doubt that there is no provision in the Bihar Act which enables an aggrieved landlord-plaintiff to challenge a decree. There was no provision in any Rent Acts and Ordinances in Bihar upto 1977 Act which provided any forum to the tenant-defendant to challenge any decree/order passed in a suit filed by the landlord-plaintiff. For the first time in the Bihar Act, 1982 revision against order of eviction has been provided. A special enactment, Bihar Act, has made inroad to general enactment, Code of Civil Procedure, so far appeal and revision are concerned and that with regard to order of eviction. The remedy of the landlord-plaintiff under the Code, i.e. appeal has been kept intact. The Bench in Shri Udai Banerjee (supra) was clearly in error.
17. Mr. Modi submitted that if it is held that the landlord cannot file a revision under Section 14(8), that will amount to discrimination, for the tenant-defendant may file a revision having lost, the landlord-plaintiff shall have to persue appeal and then perhaps second appeal also. According to him if this distinction is made, the provision shall have to be held to be arbitrary and shall have to be struck down, In support of this proposition, he relied mainly on Vinod Kumar Chowdhury (supra).
18. In Vinod Kumar Chowdhury, (supra) while holding that in Section 25B(8) of the Delhi Act, both the tenant and the landlord have right to file revision, one of the resaons given was that if two procedures against the final order are prescribed, one for the tenant and the other for the landlord, the provision will be hit by Article 14 of the Constitution. It is important to notice that the observation of the Supreme Court was made in the context of the language used in Section 25B(8) of the Delhi Act. In Ram Krishna Dalmia v. Justice Tendolkar , the Supreme Court laid down the principles to be borne in mind by Court in determining the validity of Statute on the ground of violation of Article 14. The Supreme Court held that:
The principal ground urged in support of the contention as to the invalidity of the Act and/or the notification is, founded on Article 14 of the Constitution. In Budhan Choudhury v. The Slate of Bihar , a Constitution Bench of seven Judges of this
Court at pages 1048-49 explained the true meaning and scope of Article 14 as follows:
The provisions of Article 14 of the Constitution have come up for discussion before this Court in a number of cases, namely, Chiranjit Lal v. Union of India 1950 SCR 869, State of Bombay v. F.N. Sahara 1951 SCR 682, State of West Bengal v. Anwar Ali Sarkar 1952 SCR 284, Kathi Raning Rawat v. State of Saurashtra 1952 SCR 435, Lachmandas Kewalram v. State of Bombay 1952 SCR 710, Quasim Razvi v. State of Hyderabad 1953 SCR 589 and Habeeb Mohammad v. State of Hyderabad 1953 SCR 661, It is, therefore, not necessary to enter upon any lengthy discussion as to the meaning, scope and effect of the article in question. It is now well established that while Article 14 forbids class legislation, it does not forbid reasonable classification for the purpose of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that arc grouped together from other left out of the group, and (ii) that that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases, namely, geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. It is also well established by the decisions of this Court that Article 14 condemns discrimination not only by a substantive law but also by a law of procedure.
The principle enunciated above has been consistently adopted and applied in subsequent cases. The decisions of this Court further establish:
(a) that a law may be constitutional even though it relates to a single individual if, on account of some special circumstances or reasons applicable to others, that single individual may be treated as a class by himself;
(b) that there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles;
(c) that it must be presumed that the Legislature understands and correctly appreciates the need of its own people, that its law are directed to problems made manifest by experience and that its law are directed to problems made manifest by experience and that its discriminations are based on adequate grounds;
(d) that the Legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest;
(e) that in order to sustain the presumption of constitutionality the Court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which be conceived existing at the time of legislation ; and
(f) that while good faith and knowledge of the existing conditions on the part of Legislature are to be presumed, if there is nothing on the face of the law or the surrounding circumstances brought to the notice of the Court on which the classification may reasonably be regarded as based, the presumption of constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or corporations to hostile or discriminating legislation.
The above principles will have to be constantly borne in (sic) by the Court when it is called upon to adjudge the constitutionality of any particular law attacked as discriminatory and violative of the equal protection of the laws.
"A close perusal of the decisions of this Court in which the above principles have been enunciated and applied by this Court will also show that a statute which may come up for consideration on a question of its validity under Article 14 of the Constitution may be placed in one or other of the following five classes:
(i) A statute may itself indicate the persons or things to whom its provisions are intended to apply and the basis of the classification of such persons or things may appear on the face of the statute or may be gathered from the surrounding circumstances unknown to or brought to the notice of the Court. In determining the validity or otherwise of such a statute the Court has to examine whether such classification is or can be reasonably regarded as based upon some differentia which distinguishes such persons or things grouped together from those left out of the group and whether such differentia has a reasonable relation to the object sought to be achieved by the statute no matter whether the provisions of the statute are intended to apply only to a particular person or things or only to a certain class of persons or things. Where the Court finds that the classification satisfies the tests, the Court will uphold the validity of the law, as it did in Chiranjilal v. Union of India (supra); State of Bombay v. F.N. Balsam (supra), Kedar Nath Bajoria v. State of West Bengal 1954 SCR 30, V.M. Syed Mohammad and Co. v. State of Andhra 1954 SCR 1117, and Budhan Choudhury v. State of Bihar (supra).
(ii) A statute may direct its provisions against one individual person or things or to several individual persons or things but no reasonable basis of classification may appear on the face of it or be deducible from the surrounding circumstances, or matters of common knowledge, in such a case, the Court will strike down the law as an instance of naked discrimination, as it did in Ameerunnisa Begum v. Mahboob Begum 1953 SCR 404 and Ramprasad Narain Sahi v. State of Bihar 1953 SCR 1129.
(iii) A statute may not make any classification of the persons or things for the purpose of applying its provisions but may leave it to the discretion of the Government to select and classify persons or things to whom its provisions are to apply. In determining the question of the validity or otherwise of such a statute the Court will not strike down the law out of hand only because no classification appears on its face or because a discretion is given to the Government to make the selection or classification but will go on to examine and ascertain if the statute has laid down any principle or policy for the guidance of the exercise of discretion by the Government in the matter of the selection or classification. After such scrutiny the Court will strike down the statute if it does not lay down any principle or policy for guiding the exercise of discretion by the Government in the matter of selection or classification, on the ground that the statute provides for the delegation of arbitrary and uncontrolled power to the Government so as to enable it to discriminate between persons or things similarly situate and that, therefore, the discrimination is inherent in the statute itself. In such a case, the Court will strike down both the Jaw as well as the executive action taken under such law, us it did in State of West Bangal v. Anwar Ali Sarkar (supra), Dwarka Prasad v. State of Uttar Pradesh 1954 SCR 803 Dhirendra Kumar Mandal v. Suprintendent and Remembrancer of Legal Affair .
(iv) A statute may not make a classification of the persons or things for the purpose of applying its provisions and may leave it to the discretions of the Government to select and classify the persons or things to whom its provisions are to apply but may at the same time lay down a policy or principle for the guidance of the exercise of discretion by the Government in the matter of such selection or classification ; the Court will uphold the law as constitutional, as it did in Kathi Raning Rawat v. The State of Saurashtra (supra).
(v) A statute may not make a classification of the persons or things to whom their provisions are intended to apply and leave it to the discretion of the Government to select or classify the persons or things for applying those provisions according to the policy or the principle laid down by the statute itself for guidance of the exercise of the discretion by the Government in the matter of such selection or classification. If the Government in making the selection or classification does not proceed on or follow such policy or principle, it has been held by this Court, e.g. in Kathi Raning Rawat v. The State of Saurashtra (supra) that in such a case the executive action but not the statute should be condemned as unconstitutional.
19. As has already been noticed Section 14 of the Bihar Act provides the procedure the Court shall follow when a suit is filed for eviction of a tenant on the ground of personal necessity and on the ground that the period of lease has expired I have also noticed that this section was introduced for the first time in the Rent Act of Bihar in 1982 Act, which is under consideration. This provision must have been enacted by the Legislature to shorten the litigation keeping in view the fact that landlord required the building for his own use and occupation So far the tenant is concerned, the Legislatute thought that he cannot be allowed to delay the disposal of the matter at any stage of the Us, whether during the pendency of the matter in the trial court or after an order of eviction is passed. Therefore his right of appeal under the Code has been taken away.
20. Let me test the procedure keeping in view Article 14 of the Constitution A tenant cannot claim to contest a suit for eviction on the ground of personal necessity as a matter of right. He will have to obtain leave of court by making out a prima facie case for contest. The case of the landlord that he requires the building for his own use and occupation shall be tried by the trial court by following the summary procedure. Can it be said that a landlord who has failed to prove his case before the trial court is a class by himself ? His claim was tested by the trial court. Legislature thought that a landlord, who was given opportunity to avail the summary procedure but lost in the suit, should continue to have his remedy under the general procedure, i.e. appeal. The scope of revision under Section 14B is limited. The scope of appeal is very wide and the appellate court may evaluate the evidence for recording finding on facts. This the revisional court under Section 14(8) cannot do. The classification is founded on an intelligible differentia and it has rational to the object sought to be achieved. The Legislature was free to recognise degrees of harm and may confined its restrictions to those cases where the need is deemed to be the clearest. In M. Chhaganlal v. Greater Bombay Muncipality , with reference to the provision in Bombay Municipal Corporation Act, 1988, and Bombay Government Premises (Eviction) Act, 1955, the Supreme Court held that the availability of two procedures one more onerous and harsher than the other will not attract Article
14. In Kewal Singh v Mr. Lajwanti AIR 1988 Supreme Court 161, the Supreme Court held that when a Government servant who are landlord in relation to another is asked to vacate the Government quarter which they are in occupation, such Government servants are landlords of a class by themselves.
21. Is the reaching recorded by the Supreme Court in Vinod Kumar Chowdhaury (supra) with reference to Article 14 of the Constitution while interpreting Section 25B(8) of the Delhi Act is available in interpreting Section 14(8) of the Bihar Act?
22. Sections 38 and 39 of the Delhi Act provided for appeal. The appellate form, therefore, has been prescribed in the Act itself. In other words Delhi Act excludes Sections 96 and 100 of the Code, every orders of Controller under the Delhi Act is appealable under Section 38 to the Tribunal. The order of Tribunal is made appealable to the High Court under Section 39, if it involves substantial question of law. Sections 96 and 100 of the Code were engrafted in the Act itself. When that was the position, for the first time in 1975 order passed by the Controller in an application filed by landlord on the ground mentioned in Section 14(1) Clause (e) to the proviso and Section 14A was made revisable by High Court and those orders were taken oat of the purview of Section 38 of the Act. In that context in Vinod Kumar Chowdhury (supra) the Supreme Court observed that if Section 25B(8) revision at the instance of tenant only is held to be maintainable and not at the instance of landlord, that would amount to arbitrariness.
23. By the Bihar Act the right, which has been given to a tenant-defendant in the Code under Section 96, has been taken away by Section 14(8). In other words, a new forum was created against order of eviction in particular cases. The legislature has not acted arbitrarily and Article 14 of the Constitution was not attracted.
24. I may also notice that the Code of Civil Procedure nukes some orders appealable at the instance of one party and revisable at the instance of the other party. For instance, when an application under Order IX, Rule 9, Order IX, Rule 13, Order XXII, Rule 9, Order XXII, Rule 10 are rejected, Order XLIII, Rule 1 provides for appeal against such orders. When those arc allowed the party aggrieved has no right to tile appeal.
25. For the reasons aforesaid, it must be held that in Shri Uday Banerjee (supra) scope of Section 14(8) of the Bihar Act has not been correctly interpreted and it is overruled. It is held that if a suit for decree of eviction on the ground of personal necessity is dismissed, no revision under the Proviso to Section 14(8) at the instance of landlord is maintainable.
26. In the result, this civil revision application is dismissed as not maintainable. There shall be no order as to costs.
G.G. Sohani, C.J.
I agree with my learned Brother Roy, J. that the revision application deserves to be dismissed on the ground that it is not maintainable and that the decision in Shri Uday Banerjee v. Shri. P.R. Dutta 1986 PLJR 950 does not lay down correct law. In view of the importance of the question affecting a larger number of cases. I would like to give my own reasons for corning to that conclusion. The short question for consideration in this case is whether the remedy of a plaintiff landlord, who has tiled a suit in a civil court for eviction of the defendant on the ground of bona fide requirement of the suit premises for his own occupation, is to file an appeal under Section 96 of the Code of Civil Procedure (hereinafter referred to as 'the Code') or to tile a revision application in the High Court under the Proviso to Section 14(8) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982, (hereinafter referred to as 'the Act').
28. Now it is not disputed that from a decree passed by a civil court dismissing a plaintiff's suit, an appeal lies under Section 96 of this Code. It is, however, urged that Section 14 of the Act prescribes a special procedure for a suit for eviction founded on the ground of bona fide requirement and that under Sub-section (8) of Section 14 of the Act, the only remedy available to a plaintiff aggrieved by a decree parsed in such a suit is to rile a revision application before the High Court. It is, therefore, contended that this revision is maintainable.
To appreciate this contention it is necessary to turn to the provisions of Section 14(8) of the Act which are as under:
No appeal or second appeal shall lie against an order for the recovery of possession of any premises made in accordance with procedure specified in this section:
Provided that on an application being made within sixty days of the date of the order of eviction the High Court may, for the purpose of satisfying itself that an order under the section is according to law, call for the records of the case and pass such order in respect thereto as it thinks fit.
From a perusal of the aforesaid provisions it is clear that the language used therein is clear, plain and unambiguous and capable of one construction only, that if the suit for eviction is decreed and an order for the recovery of possession of the suit premises is passed, no appeal lies from such decree and the only remedy available to a person, who is aggrieved by such a decree, is to file a revision application before the High Court. But if the suit is dismissed and if there is no order for the recovery of possession and consequently no order for eviction, the right of appeal vesting in a plaintiff by virtue of Section 96 of the Code and Section 100 of the Code is not affected because the provisions of Section 14(8) of the Act are not attracted on a plain reading of that provision.
29. It is, however, contended and which contention was upheld by a Division Bench of this Court in 1986 PLJR 950 (supra) that the expression "order for the recovery of possession of any premises" occurring in Section 14(b) of the Act has to be construed in the context in which it appears as an "order deciding a suit for the recovery of possession of any premises" and that so construed the remedy of a person aggrieved by such an order is by way of revision only as provided by Section 14(8) of the Act. But, for construing the provision in that manner, the Court must read into Section 14(8) of the Act words which are not there and rewrite those provisions. Such a course, in my opinion, would offend the well settle principles of law governing interpretation of Statutes. As observed by the Privy Council in Srimati Renula Bose v. Rai Manmatha Nath Bose AIR 1945 Privy Council 108 it is contrary to all rules of construction to read words into an Act unless it is absolutely necessary to do so.
30. The reason advanced for rewriting Section 14(8) of the Act is that the legislature could not have intended that while providing special procedure for disposal of suits for eviction on the ground of bona fide requirement, the landlord would have no remedy at all if his suit was dismissed. This contention was upheld in 1986 PLJR 950 (supra) as is clear from the following observation in that judgment at page 954:
Can it now be said that the legislature intended that in a suit to be tried by a summary procedure the landlord has no remedy at all under Section 14 of the Act. In my considered view the answer would be categorically in the negative. I would, therefore, having considered the matter in all its ramifications, hold that the words 'no appeal or second appeal shall lie against an order for the recovery of possession of any premises made in accordance with the procedure specified in this section' has to be read as 'no appeal or second appeal shall lie in connection with any order for the recovery of possession of any premises in accordance with the procedure specified in this section', meaning thereby that the words 'against an order for recovery of possession' has to be read as 'in connection with an order for recovery of possession' which in its turn would be reading the word 'against' as 'in connection with or relating to.
With great respect, I am unable to agree with the aforesaid observation, The assumption that Section 14(8) of the Act bars an appeal from a decree dismissing a suit for eviction on the ground of bona fide requirement is not correct Section 14(8) of the Act bars only an appeal from 'an order for the recovery of possession of any premises.' In view of the provisions of Section 13 of the Act which lay down that the provisions of Section 14 shall have effect notwithstanding anything inconsistent therewith contained in any other law, if an appeal is barred by virtue of Section 14(8) of the Act, then alone the bar created by Section 14(8) of the Act will prevail, notwithstanding the provision of Section 96 of the Code and Section 100 of the Code providing for first or second appeal from a decree passed in a suit for eviction. But that bar will not extend to appeals which are not prohibited by Section 14(8) of the Act. That provision only prohibits ail appeal or second appeal from an order for the recovery of possession. If there is no such order, the bar contemplated by Section 14(8) of the Act does not operate and the remedy of an appeal under Suction 96 of the Code is not prohibited. An appeal from a decree dismissing a suit for eviction on ground of bona fide requirement would be competent because it is not barred by Section 14(8) of the Act. If such an appeal is competent, then how can it be said that in a suit instituted under Section 14 of the Act the landlord would have no remedy at all if the suit is dismissed and that such a result could not have been intended by the legislature?
31. It is then contended that if Section 14(8) of the Act is not construed in a manner indicated in 1986 PLJR 950 (supra), the object of providing a speedier remedy in a suit for eviction on the ground of bona fide requirement would be defeated if a landlord is allowed to pursue the normal remedy of an appeal under Section 96 of the Code from a decree passed in such suit. But this contention cannot be upheld for more than one reason. In the first place, recoures to object and policy of the Act or consideration of the mischief and and defect which the Act purports to remedy is only permissible when the language is capable of two constructions. It would be useful in this connection to refer to the following observations of the Supreme Court in Commissioner of Income-tax Madhya Pradesh and Bhopal v. Smt. Sodra Devi :
The question for our determination is a very narrow one and it turns on the construction of Section 16(3) of the Act, The High Court of Madhya Pradesh plunged headlong into a discussion of the reasons which motivated the Legislature into enacting Section 16(3) by Act VI of 1937, and took into consideration the recommendations made in the income-Tax Enquiry Report, 1936 and also the statement of objects and reasons for the enactment of the same, without considering in the first instance whether there was any ambiguity in the word 'individual' as used therein.
It is clear that unless there is any such ambiguity it would not be open to the Court to depart from the normal rule of construction which is that the intention of the Legislature should be primarily gathered from the words which are used. It is only when the words used are ambiguous that they would stand to be examined and construed in the light of surrounding circumstances and constitutional principle and practice....
In my opinion, the language of Section 14(8) of the Act is not capable of two constructions. It is not ambiguous. Resort to object and policy of the Act would, therefore, be not permissible for construing Section 14(8) of the Act. Moreover, how can it be said that the object is likely to be defeated if the remedy of an appeal from a decree dismissing a suit which is available to a plaintiff under Section 96 of the Code is not taken away? It is true that a speedier remedy has been, made available to a landlord seeking eviction on the ground of bona fide requirement. That is why if there is an order for recovery of possession, the normal remedy of a first and second appeal available to a defendant has been taken away and instead a revision, whose scope is narrower than that of a first appeal is provided. But in case of a dismissal of the suit for eviction, the legislature might have intended not to deprive the landlord of his right of appeal under Section 96 of the Code whose scope would be wider than that of a revision provided by the proviso to Section 14(8) of the Act. It cannot, therefore, be held that the object of Section 14 of the Act would be defeated if the words in Sub-section (8) of Section 8 of the Act are not given their natural meaning. It is true that it was open to the legislature to bar the remedy of an appeal to a person aggrieved by any order passed in a suit for eviction on the ground of bona fide requirement. But the legislature having failed to do so, it would not, in my opinion, be permissible to rewrite Section 14(8) of the Act when there is no ambiguity in the language used by the legislature in that provision.
32. Reliance was placed on the decision of the Supreme Court in Vinod Kumar Chowdhry v. Smt. Narain Devi Taneja which,
according to the decision in S986 PL.IR 950 (supra), has clinched the issue, because according to the Division Bench, Section 14(8) of the Bihar Act and the relevant provisions of the Delhi Rent Control Act, 1958, which was for consideration before the Supreme Court, are in part materia. With respect, the Division Bench has failed to notice a substantial difference in the two provisions. Section 25B (8) of the Delhi Act is as follows :-
No appeal or second appeal shall lie against an order for the recovery of possession of any premises made by the Controller in accordance with the procedure specified in this section:
Provided that the High Court may, for the purpose of satisfying itself that an order made by the Controller under the section is according to law, call for the records of the case and pass such order in respect thereto as it thinks fit.
From a comparison of the aforesaid provision with Section 14(8) of the Bihar Act it would be clear that under the proviso to Section 25B(8) of the Delhi Act, any order made by the Controller is made revisable by the High Court. However, under the provisions of Section 14(8) of the Bihar Act, an application for revision before the High Court is maintainable only if it is filed within sixty days of the order of eviction. (The underlining is mine), if there is no order of eviction then it follows that a revision application cannot obviously be filed. The proviso to Section 14(8) of the Bihar Act, unlike the proviso to Section 25B(8) of the Delhi Act, does not confer power on the High Court to revise an order passed under Section 14 of the Act even without any application in that behalf. The High Court gets jurisdiction to revise an order passed under Section 14 only when an application for revision has been filed within sixty days from the date of order of eviction. No such application can be filed if that is no order of eviction, in such a case, therefore, the occasion for the High Court to exercise provisional power under the proviso to Section 14(8) of the Bihar Act will not arise, whereas under the Delhi Act there is no such limitation on the power of the High Court. It was in view of these provisions of the Delhi Act that the Supreme Court held that the order covered by Sub-section (8) of Section 25B of the Delhi Act would mean a final order disposing of an application for eviction. This would be clear from the following observation of the Supreme Court in ATR 1980 SC 2012 at page 2016:
It is in the above background that the question as to whether an appeal to the Tribunal or a revision to the High Court was competent against the order passed in the instant case by the Controller has to be decided, and that brings us directly to the meaning of Sub-section (8) of Section 25B. The proviso to that sub-section gives power to the High Court to revise 'an order made by the Controller under this section' which expression is no doubt capable of being construed as any order of whatsoever nature passed by the Controller while acting in accordance with the procedure laid down in Section 25-B. The proviso, however, has to be read as a legislative measure carved out of the sub-section to which it is appended and the order mentioned therein has to be regarded as an order of the type which the sub-section speaks of, i.e.,' an order for the recovery of possession of any premises made by the Controller in accordance with the procedure specified in this section.' Thus the order covered by Sub-section (8) (and therefore, by the proviso also) would be a final order disposing of an application on a conclusion of the proceedings under Sub-section (4) or Sub-section (7) of Section 25B....
In view of the difference in phraseology between the two provisions, one under the Bihar Act and the other under the Delhi Act, and in view of the fact that under the Bihar Act, unlike the Delhi Act the High Court has no jurisdiction to revise an order passed under Section 14 unless an application within a certain period from the date of the order of eviction has been passed, it would not, in my opinion, be permissible to hold that the decision in (supra)
clinches the issue.
33. It is then contended before us that the reasons which weighed with the Supreme Court in (supra) for coming to the
conclusion that the expression 'order for the recovery of possession or any premises' occuring under Section 25B(8) of the Delhi Act, should be construed as 'an order deciding an application for the recovery of the possession of any premises' are equally attracted in a case under Section 14 of the Bihar Act. It is, therefore, necessary to examine this aspect of the matter.
34. Now one of the reasons which it is contended persuaded the Supreme Court was that if an order in favour of the landlord alone was meant to be covered by Sub-suction (8), an order refusing such relief would be liable to be called in question by way of an appeal so that there would be two procedures for the end product of the Controller's proceedings being called in question and that this would make the sub-section suffer from a constitutional invalidity. It has, however, to be noted that in (supra), the Supreme Court was not considering the question as to whether the provisions of Sub-section (8) of Section 25B of the Delhi Act were invalid as violative of Article 14 of the Constitution on the ground of availability of two procedures. Had that question directly arisen before the Supreme Court in (supra), the decision in Maganlal Chhaganlal (P) Ltd. v. Municipal Corporation of Greater Bombay and Ors. , rendered by a larger Bench would have been noticed when it has been laid down that mere availability of two procedures would not invalidate a Statute instances are galore where the legislature has provided different procedures for the end product. For example, whereas the dismissal of an application under Order IX, Rule 9 of the Code or under Order IX, Rule 13 of the Code is appealable, no appeal lies but only a revision lies to the High Court against an order granting such applications. Moreover, as held by the Supreme Court in. Rangshari Haldar and Anr. v. State of West Bengal , it will have to be ascertained before declaring a provision to be invalid, whether the classification is rational and based on intelligible differentia and whether the basis of differentiation has any rational nexus with the avowed policy and object of the Act. In the instant case it is, however, not necessary to go into the question as to whether the provisions of Sub-section (1) of Section 14 of the Act are violative of the provisions of Article 14 of the Constitution and whether those provisions, therefore, deserve to be struck down, ff and when such a question directly arises for consideration, it will have to be considered from all angles. The Supreme Court has merely observed in AIR 1980 SC 2012 (supra) that the provisions of Section 25B(8) of the Delhi Act can be construed in the manner laid down by the Supreme Court to avoid any possible objection to the validity of that provision on the ground of discrimination in providing two different procedures for the end product. The other reason which led the Supreme Court to take the view that Section 25-B of the Delhi Act should be construed to cover the case of dismissal of an application for eviction was that under the Delhi Act, Section 25B(8) was exhaustive of the rights of appeal or revision in relation to the proceedings held under Section 25B, Under the proviso to Sub-section (8) of Section 25B power has been conferred on the High Court to revise any order of the Controller and an application within a certain period from the date of the order of eviction is not necessary to enable the High Court to exercise that power. Under the Delhi Act, therefore, a remedy has been provided under Section 25B(8) to a person aggrieved by the dismissal of his application for eviction and it was in that context that the Supreme Court held that Section 25B was exhaustive of the right of appeal and revision. Under the Bihar Act, however, the proviso to Section 14(8) does not confer any right of revision on a person aggrieved by the dismissal of his suit for eviction. Therefore, if from the scheme of Section 25B of the Delhi Act it could be held that Sub-section (8) of Section 25B of that Act was intended to be exhausive of the rights of appeal and revision in relation to any proceedings held under that provision before a Controller, no such inference is possible under the corresponding provisions of the Bihar Act. The decision in AIR 1980 SC 2012 (supra), is, therefore, distinguishable on facts.
35. In my opinion, therefore, as the right vesting in a plaintiff under Section 96 of the Code to prefer an appeal from a decree dismissing his suit for eviction is not taken away by Section 14(8) of the Act, an appeal under Section 96 of the Code cannot, be held to be barred by virtue of Section 13 of the Act. Under the Proviso to Section 14(8) of the Act, a revision application cannot be filed by the plaintiff within sixty days of the date of the order of eviction because there is no order of eviction. Under the circumstances, the revision application filed by the plaintiff must be held to be not maintainable.
36. For all these reasons, I agree with my learned Brother Roy, J. that this revision application deserves to be dismissed on the ground that it is not maintainable. This revision application is, accordingly, dismissed. In the circumstances of the case parties shall bear their own costs of the application.
S.B. Sinha, J.
In view of the importance of the question involved in this case I too wish to add same reasonings of mine.
37. The question, which arises for consideration in she application is, whether in view of the provisions of Section 14(8) and proviso appended thereto in the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (hereinafter referred to as "the Act") ; a landlord can prefer a revision application although his suit for recovery of possession of the tenanted premises against the tenant has been dismissed.
38. In Uday Banerjee v. Shri P.R. Dutta reported in 1986 PLJR page 950, a Division Bench of this Court following a decision of the Supreme Court in Vinod Kumar Chowdhary v. Smt. Narain Debi Teneje , held that when a suit is tiled by the landlord for recovery of possession of the tenanted premises or the grounds enumerated under Section 11(1)(c) and Section 11(1)(e) of the said Act, a revision shall be maintainable even at the instance of the landlord.
39. Before embarking upon the question as to whether the decision of this Court in Udai Banerjee (supra) has correctly been rendered or not; it is necessary to consider the scope and effect of the provision contained in Section 14 of the Act, vis-a-vis the other provisions thereof.
40. The said Act was enacted to regulate the letting out the building and the rent of such building and to prevent unreasonable eviction of tenant therefor in the state of Bihar, as would be evident from the Preamble thereof.
41. It is, therefore, clear that the Act was enacted to safeguard the interests of the tenant from any unreasonable eviction as well as give them certain benefits and also to save them from the oppressive acts of the landlords.
42. However, Section 14 of the said Act, carves out special protection for the landlord in order to ensure a speedy remedy to them, when a suit is filed on the ground of his personal necessity as contemplated under Section 11(1)(c) of the said Act and/or on the ground of expiration of the period of lease as contemplated under Section 11(1)(e) thereof.
43. In Reyazul Haque v. Most. Maimna Khatoon and Anr. reported in 1964 Bihar Law Times page 218, at page 223, a learned single Judge of this Court held as follows:
A bare perusal of Section 14 of the Act goes to show mat it applies to a suit for eviction filed by a landlord only on two of the grounds mentioned in Section 11. A suit based on the remaining grounds contained in Sub-section (1) of Section 11 of the Act is not subject to the provisions of Section 14 of the Act. Moreover the procedure prescribed in Section 14 of the Act is more stringent and summary in nature than the procedure prescribed for the trial of the suits under the Code of Civil Procedure in a suit governed by this section commences on the basis of a summon issued to the defendant in the prescribed form. Moreover the defendant is required to obtain leave of the court to defeat the claim of ejectment and for this purpose he is required to file an affidavit. The court may or may not grant leave to the defendant to defend the suit. If he omits to obtain the leave of the court within the stipulated time the defendant is deemed to have admitted the claim of the plaintiff. A decree in a suit governed by Section 14 is not appealable and only a revision lies against the said decree to the High Court. In other respect also the defendant in a suit governed by Section 14 of the Act has been placed in a straight jacket from it is difficult for him to wriggle out and delay the ultimate outcome of the suit. Them is, thus, no doubt that Section 14 of the Act prescribes a more speedy remedy to a landlord to achieve his ultimate goal of seeking the eviction of a sitting tenant. The procedure in a suit governed by the Code of Civil Procedure is of more detailed nature, It is more time consuming.
44. Similarly, in Krishna Prasad and Ors. v. Mosmat Daho Devi and Anr. reported in 1985 PLJR page 302, this Court has held:
Obviously for the reasons that have been noticed as the object of the Delhi Amendment Act by the Supreme Court, Section 14 of the Bihar Act has placed the landlord seeking recovery of possession of a house by ejecting a tenant for his own occupation of any person for whose benefit the premises is held by the landlord or in case of a tenant holding on a lease for a specified period, on the expiry of the period of the tenancy, in a separate class. The procedure in such case has been simplified with the primary object of avoiding delays in the disposal of the suits by ensuring that the court shall issue summons in the prescribed form in every such suit in addition to and simultaneously with, the issue of summons for service on the tenant or tenants by registered post with acknowledgment due, and if the circumstances of the case so require by the publication of the summons in the official Gazettes or newspapers circulating in the locality, in which the tenant last resided or carried on business or worked for gain, by providing that the tenant on whom summons is duly served whether by ordinary mail or registered post shall not contest the prayer for eviction from the premises unless he has an affidavit stating the ground on which he seeks to take such contest and obtains relief from the court as provided and in default of the appearance in pursuance of the summons of his obtaining such lease the statement made by the landlord in the suit for eviction shall be deemed to be admitted by the tenant and the landlord shall be entitled to an order for eviction, and even in the case in which the leave is granted, the Court shall follow the procedure of the Court of Small Causes including the recording of evidence. The attempt to avoid delay is carried as far as making no provisions for appeal of second appeal in cases in which the decree for the recovery of possession is made on the grounds specified in Clauses (c) and (e) of Sub-section (1) of Section 11 of the Act, safeguarding of course the right to seek review of the order of eviction in accordance with the provision of Order 47 of the first Schedule of the Code and a revision to the High Court.
45. A suit for eviction by a landlord as against his tenant is governed by the Transfer of Property Act. The Building Control Legislations enacted by different States however, seek to curb the absolute right of a landlord to evict a tenant by imposing certain conditions. Thus, except to the extent of protection given to a tenant under the Act, other rights and obligations of the parties are governed by the Tranfer of Property Act.
Reference in this connection may be made to Idul Hassan and Ors. v. Rajindra Kumar Jain reported in 1989 Vol. IV SCC 550, wherein the Supreme Court held as follows:
Mrs. Mahajan tried to urge that the Act of 1947 was a temporary Act. Therefore, it could not create any right in favour of the landlord after the expiry of the time. This argument is under a misconception. Neither the Act of 1947 nor the Act of 1972 gives any right to the landlord. The landlord's right to evict tenant is guided by the Transfer of Property Act. The Act of 1947 gives protection to the tenants under certain conditions and at the time when the suit was filed, the rights of the parties had been crystallised.
46. Thus, even under Rent Control Legislations while granting protection to the tenants certain benefits also can be conferred upon the landlords Sections 14 and 15 of the Act are steps taken by the legislature in that direction.
47. While the other provisions and particularly Section 11 of the said Act seek to provide for a protection to the tenant, Section 14 which provides for special procedure, also create certain rights in favour of the landlord.
The logical corrollary is that in the matter of a suit for eviction by a landlord on the ground of his personal necessity or on the ground of expiry of the period of lease puts him in an advantageous position.
48. Keeping the object purport and policy of the legislature in enacting Section 14 of the Act, Section 14(8) and the proviso thereof have to be construed.
49. A right of appeal conferred upon a litigant in terms of Section 96 of the Code of Civil Procedure is a statutory right. Such a right, however is subject to any other favor the time being in force.
50. It is, therefore, clear that unless a right of appeal is taken away or abridged by a statute expressly or by necessary implication, the same cannot be said to have taken away.
51. A right of appeal is a statutory right and is a matter of substance and not of procedure.
52. Reference in this connection may be made to Garikapatti Neerayya v. N. Subbaih Chowdhury reported in 1957 SC 540 and Maria Christines v. Maria Zurna reported in 1979 SC 1352.
53. However, the legislature cannot only curtail a vested right of appeal also have the right of appeal a conditional one.
54. It is true that the said Act does not itself provide for a right of appeal expressly. It is further evident that the legislature in its wisdom has provided for a speedy remedy for a suit filed under Section 14 of the said Act.
55. In Jetha Bai and Sons Cochin v. Sunderdas Rathenai , the Supreme Court held that under the Karnataka Kent Control Act a right of appeal has completely been taken away and the entire proceeding has sought to be limited to a two tier system namely viz. the Rent Control Court and Re visional Court whereas under the Kerala Rent Control Act there is a three tier system namely the Rent Control Court, Appellate Court and the Revisional Court.
56. Thus whether a right of appeal so far the landlord or a tenant is concerned is taken away or not can only be gathered from the express language used in the statute.
57 As has rightly been pointed out by learned brother S. Roy, J. that the normal rule of the interpretation of the statute is to interprete it literally.
58. In Heckett Engineering Co. v. Their Workman the Supreme Court held that it is a well settled rule of construction that the language of a provision or rule should not be construed in a manner which would do violence to the phraseology. In Sutters v. Briggs reported in 1922 Appeal Cases page 1 at page 8, Srikenhead L.C. observed as follows:
Where as here, the legal issues are not open to serious doubt our duty is to express a decision and have the remedy (if one be resolved upon) to others.
In Halsbury's Laws of England Fourth Edition Volume 44 at page 840 the learned author states "it is the province of the legislature to enact statutes, and of the courts to construe the statutes which the legislature had enacted.
In Craise on Statute Law, 7th Edition at page 65 the learned author precisely states what should be the construction where meaning is plain by the following words:
If the words of the statute are themselves precise and unambiguous, then no more can be necessary than to expound those words in their ordinary and natural sense. The words themselves alone do in such a case best declare the intention of the law-giver.
In the Union of India v. Sankalchand Himatlal Sheth and another , it has been held that where the
statute's meaning is clear and explicit, words cannot be interpolated. In Slate of Kerala v. Mathai Vergheses and Ors. reported in 1986 Vol 4 SCC page 746, it has been held "In interpreting the provisions, the exercise undertaken by the Court is to make explicit the intention of the legislature which enacted the legislation It is not for the court to reframe the legislation for the very good reason that the powers to legislate have not been conferred on the Court, A court can make a purposeful interpretation so as to evaluate the intention of the legislature and not a purpose-less one in order to defeat the intention of the legislature wholly or in part. "Reference in this connection may also be made to
Recently the Supreme Court also in Raja Satyendra Narayan Singh and Anr. v. State of Bihar and Ors. reported in 1987 BUR page 477 at page 481 : 1987 BLJR (SC) 47 held that rules and section should be harmoniously construed. It has further been held in the aforementioned decision that basic principles of constructions of every statute are to find out what is clearly stated and not to speculate upon latent imponderables.
Reference in this connection may also be made to a recent decision of the Supreme Court in Gram Panchayat Kanonda v. Director Consolidation of Holdings Haryana .
59 In Ajay Pradhan v. State of M.P. , in
U.P. Bhoodan Yogna Samiti v. Braj Kishore
and in Mittilesh Kumari v. Prem Behari reported in 1989 BBCJ 54 (SC) the Supreme Court has clearly held that where the words used in a statute are plain and unambiguous, recourse to the interpretation of the Statute cannot be taken.
In Atma Ram v. Ishwar Singh , the Supreme
Court while interpreting Section 1(3) and 13 of a State Rent Control Act held that while construing a statute, the language background context and purposes all have to be borne in mind.
60. Section 14 of the Act, as noticed hereinbefore, being a beneficient legislation so far as the landlord are concerned they must be construed in a manner so as not to defeat the purpose of the Act.
61. The landlords who file the suits for eviction of his tenant under Section 11(c) and/or Section 11(1)(e) of the Act are class by themselves. Thus, even in a case where a landlord's suit for eviction of a tenant is dismissed he cannot be precluded from preferring an appeal which has been denied only to a tenant as is evident from a plain reading of Section 14(8) of the Act and the proviso appended thereto.
62. My learned brother S. Roy, J. as well as learned Chief Justice have date with this matter elaborately.
63. However it is well known that various statutes provided for a right of appeal only to one of the litigants. As for example the provision of the Contempt of Court's Act provides for a right of appeal only at the instance of a person who has been convicted.
64. In Arjun Singh v. Mohindra Kumar , the
Supreme Court held as follows:
The latter is a specific statutory remedy provided by the Code for the setting aside of ex parte decrees, and it is not without significance that under Order XLIII, Rule 1(d) an appeal lies not against orders setting aside a decree passed ex parte but against orders rejecting such an application unmistakably pointing to the policy of the Code being that subject to securing due diligence on the part of the parties to the suit, the Code as far as possible makes provision for decisions in suits after a hearing afforded to the parties.
65. in D.N. Taneja v. Bhajan Lal reported in 1988 Vol III SCC page 26, the Supreme Court while interpreting the provision of Sections 15 and 19(1) of the Contempt of Court's Act, 1971 held as follows:
Right of appeal is a creature of the statute and the question whether there is a right of appeal or not will have to be considered on an interpretation of the provision of the statute and not on the ground of propriety or any other consideration.
66. Section 14(8) of the Act is couched in negative terms prohibiting preferring of an appeal from an order of recovery of possession. The words 'recovery of possession' are significant, The proviso appended to the aforementioned provision, however, carves out an exception to the general rule.
A Proviso normally is to be taken to be limited in its operation to the Sections or other provisions which it qualifies.
However, in the case of proviso also the usual rule, that an act is to be construed as a whole apply.
See Francis Bannian's Statutory Construction, at page 572.
67. From a reading of Section 14(8) and its Proviso together, it appears to me that the legislature intended to take away the right of an appeal and a second appeal only against the order of a recovery of possession and restricted the right of a tenant to move the High Court against such an order by prefering a revision application. However the right of appeal ordinarily vested in the landlord as provided for under Section 96 of the Code of Civil Procedure was untouched.
68. Thus in my opinion, on a plain reading of Section 14(8) of the Act and the Proviso appended thereto it is clear that in the event of a dismissal of a suit of the landlord on the ground of personal necessity or expiry of the period of lease, an appeal shall lie and a revision petition before this Court is not maintainable.
69. In Uday Banerjee's case (supra), a Division Bench observed as follows:
An example has been given by Mr. S.K. Mazumdar learned Counsel for the petitioner. The submission is that if a literal and grammatical adherence is to be given to Section 14(8) of the Act as contended by learned Counsel for the opposite party, in the case of a partial eviction that portion of the order which is against the tenant will only be revisable and not appealable whereas assuming though not admitting, in favour of the opposite party that an appeal would lie at the instance of the landlord, then the landlord will have to seek a remedy by way of an appeal before an appellate court the forum being inferior to that of this Court. What an anomalous situation? I fail to appreciate this point since the Statute has given no right of appeal whatsoever even to a landlord. Therefore, the question of any anomaly does not arise at all.
70. The anomaly sought to be pointed out by the learned Counsel appearing on behalf of the petitioner in that case, in my opinion, is misconceived. In various suits where cross suits are filed or where different suits having different suit valuations are heard analogously, the same problem arises. In such matters, the courts are not powerless. In such an event on an application was filed by one of the parties, the High Court may itself withdraw the appeal from the Court of District Judge or may slay the hearing of the revision application pending disposal of the appeal by the first appellate Court.
71. In any event such considerations are irrelevant for the purpose of construction of a statute.
72. The next point which fails for consideration is as to whether Section 14(8) would become unconstitutional as it provides for a right of appeal to a landlord but not to a tenant.
73. It is now well known that whether the classification made in a statute is reasonable or not will have to be determined from the purpose and policy of the Act.
Reference in this connection may be made to Shiv Bahadur Singh v. State of U.P. reported in AIR 1953 SC 401.
74. In Nav Rattanmal and Ors. v. State of Rajasthan , the Supreme Court while considering Article 149 of the Limitation Act, 1908 held that the said provision is not ultra vires as the claims of Government and claims of individuals stand on different footings and as such the classification made is rational.
75. As noticed hereinbefore, in the case of Arjun Singh v. Mohindra Kumar , the Supreme Court also took the
same view while considering the provisions of Order IX, Rule 13 of the Code of Civil Procedure.
76. In S.M. Transports (P) Ltd. v. Sankaraswamigal Mutt , the Supreme Court held that taking away of a protection granted to the tenants under the Madras City Tenants Protection Act, 1922 by an amendment made therein by amending the said Act in respect of non-residential tenants residing in certain towns was not discriminatory and based upon reasonable differentia.
77. In shamugha Oil Mill v. Market Committee Ramaswami, J. held as follows:
Learned Advocate for the petitioner next contended that Section 11(1) should be held to be invalid, as it would be hit by Article 14 of the Constitution. It is urged that the provisions of Section 11 are not general in their scope and are not applicable to all dealers within the State, but only a few districts are picked out by the State Government. It is further contended that while under the Madras General Sales tax, a dealer has right of appeal to the departmental authority and to an independent Tribunal with a power of revision by the High Court, there is no such right in a case of levy under Section 11(1) of the Act.
I am satisfied, that there is no substance in this contention. The object of the Act is to give protection to the producers of commercial crops and Government could validly apply that Act, to begin with, to the selected areas. It cannot be said that there is infringement of Article 14 of the Constitution. Marketing legislation of this type is for the welfare of the general public. As regards the procedural right, it is enough to point out that it is not an uncommon feature to enactments dealing with local bodies not to provide a right of appeal.
In such a case the assessee has got right of resort to the Civil Court if the assessing authority exceeded its jurisdiction. The levy of cess could also be challenged if prosecution is initiated to enforce it in a criminal court. There is, therefore, no substance in the contention that the provisions of the Act offend the equal protection of law guaranteed by Article 14 of the Constitution.
78. A constitution Bench of the Supreme Court in Lachhman Das and Ors. v. State of Punjab and Ors. held that
Article 14 does not forbid reasonable classification and for that purpose even one person or a group of persons can form a class. In that case it was further held that the State Bank of Patiala is although a single person ; it being a class by itself, it is within the power of the State to enact a law under which dues to the Bank were expressly included in the definition of the State dues so that a speedy recovery thereof may be possible.
79. in that case it was also held that the differentia between the Patiala state Bank and other Banks has a rational bearing on the object of the legislation.
80. In Pashupati Nath v. Gomishanker , a
Division Bench of this Court held:
Where unequal amounts from salaries of the judgment-debtors drawing different amounts of substantive pay have been attached in accordance with the provisions of Section 60, Civil P.C. this does not offend the provisions of Article 14 of Constitution as both the judgment-debtors are not similarly situated.
81. Similar view has been taken in Rura Ram v. Curbachna reported in AIR 1954 Punj 254.
82. Yet recently in Bhola Ram Choudhary v. The State of Bihar , it was held that the lessees of Khas Mahal lands form a class by themselves.
83. The rule that procedural law comes as much within the purview of Article 14 as substantive law admits of the exception that in different circumstances, variation in legal procedures is necessary in the interests of justice itself, such as in the Civil Procedure Code, Section 87B, giving to same extent a special treatment to ex-rulers, or Order V, Rule 3, providing for service by post or Rule 24 along with U.P. Civil Laws (Reforms and Amendments) Act, 1954 or Section 80 meant for protection of interest of the Government, or Order XXI, Rule 22, where notice to judgment-debtors is not insisted in case of decree-holders who are diligent, or Order XXXVII, making difference in treatment of defendants in ordinary suits and suits on negotiable instruments, or Section 60, providing for attachment of unequal amounts from salaries of two judgment-debtors drawing different amount as substantive salary, or Section 60(1)(c), affording protection to tillers of soil or Section 92, making special provisions in the matter of trusts for public purposes of a religious or charitable nature.
84. There are numerous decisions wherein the such classifications have been held to be passed on reasonable differentia.
85. Both brother Section Roy, J. as also learned Chief Justice referred the case of M. Chhogganlal v. Greater Bombay Municipality reported in 1974 SC 2009 for the proposition that different procedures containing speedy and harser remedy can be provided for by a statute in favour of a class of litigants.
Reference in this connection may also be made to Stale of Gujarat v. Patel Bara Karsan reported in 1980 Supp SCC page 7 and in State of Gujarat v. Dharamdas reported in 1982 SC 781, wherein also constitutionality of similar legislations have been upheld.
86. Yet recently in B.R. Singh v. Union of India reported in 1990 Vol. 1 Supreme Court Journal page 9 it was held that a building belonging to the Government employees may be given special protection under the Rent Control Legislation and the same would not offend Article 14 of the Constitution.
87. Unfortunately, these aspects of the matter were not considered in Uday Banerjee's case (supra) or in Binod Choudhary's case (supra).
88. It is true as has been pointed out by Mr. Modi that in Binod Kumar Choudhary case the Supreme Court held that a statute can be read down or read up for the purpose of up-holding its constitutionality but in my opinion, from the judgment of the Supreme Court it is evident that neither the said point was urged nor fell for its decision.
89. For the reasons aforementioned and particularly in the context of the said Act, Binod Kumar Choudhary's case cannot be said to be binding precedent in the facts and circumstances of this case.
90. In A.R. Antulay v. R.S. Nayak and Anr. , a Constitution Bench of the Supreme Court held that if a judgment which has been rendered by the Supreme Court, ignoring a provisions of law, the same must be held to have been rendered per-incurium and is not binding upon another bench.
In Municipal Corporation of Delhi v. Gurnam Kaur reported in 1988 Vol 1 SCC 101, the Supreme Court held as follows:
Quotability as 'law' applies to the principle of a case, its ratio decidendi. The only thing in a judge's decision binding as an authority upon a subsequent judge is the principle upon which the case was decided. Statements which are not part of the ratio decidendi are distinguished as obiter dicta and are not authoritative. The tasks of finding the principle is fraught with difficulty because without an investigation into the facts, as in the present case, it could not be assumed whether a similar direction must or ought to be made as a measure of social justice. That being so the direction made by this Court in Jamna Das, case could not be treated to be a precedent. The High Court failed to realise that the direction in Jamna Das case was made not only with the consent of the parties but there was an interplay of various factors and the court was moved by compassion to evolve a situation to mitigate hardship which was acceptable by ail the parties concerned. The court no doubt made incidental observation to the Directive Principles of State Policy enshrined in Article 38(2) of the Constitution and said:
Article 38(2) of the Constitution mandates the State to strive to minimise amongst others, the inequalities in facilities and opportunities amongst individuals. One who tries to survive by one's own labour has to be encouraged because for want of opportunity destitution may disturb the conscience of the society. Here are persons carrying on some paltry trade in an open space in the scorching heat of Delhi sun freezing could or terrentiai rain, They are being denied continuance at that place under the specious plea that they constitute an obstruction to easy access to hospitals. A little more space in the access to the hospital may be welcomed but not at the cost of someone being deprived of his very source of livelihood so as to swell the rank of the fast growing unemployed. As far as possible this should be avoided which we propose to do by this short order.
This indeed was a very noble sentiment but incapable of being implemented in a fast growing city like the Metropolitan City of Deihl whore public streets are overcrowded and the pavement squatters create a, hazard to the vehicular traffic and cause, obstruction to the pedestrians on the payement.
Pronouncements of law, which are not part of the ratio decidendi are classed as obiter dicta and are not authoritative. With all respect to the learned Judge who passed the order in Jamna Das case to the learned Judge who agreed with him. We cannot concede that this Court is bound to follow it. It was delivered without argument, without reference to the relevant provisions of the Act conferring express power on the Municipal corporation to direct removal of on encroachements from any public place like pavements or public streets and without any citation of authority. Accordingly, we do not propose to uphold the decision of the High Court because, it seems to us that it is wrong in principle and cannot be justified by the terms of the relevant provisions. A decision should be treated as given rep incuriam which it is given in ignorance of the terms of a statute or of a rule having the force of a statute. So fur as the order shows, no argument was addressed to the court of the question whether or not any direction, could properly be made compelling the Municipal Corporation to construct a stall at the pitching site of 2 payment squarter. Professor P.J. Fitzgerald, Editor of the Salmond on Jurisprudence, 12th edn. explains the concept of sub silentio at page 153 in these words:
A decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind. The court may consciously decide in favour of one party because of point A, which it considers and pronounces upon. It may be shown, however, that logically the court should not have decided in favour of the particular party unless it also decided point B in his favour, but point 3 was not argued or considered by the court. In such circumstances, although point B was logically involved in the facts and although the case had a specific outcome the decision is not an authority on point B. Point B is said to pass sub silentio.
In Gerard v. Worth of Paris Ltd. (K) the only point argued was on the question of priority of the claimant's debt, and on this argument being heard, the court granted the order. No consideration was given to the question whether a garnishee order properly be made on an account standing in the name of liquidator When, therefore, this very point was argued in a subsequent case before the Court of Appeal in Lancaster Motor Co. (London) Ltd. v. Bremith Ltd. the court held itself not bound by its previous decision. Sir Wilfrid Greene MR. said that he could not help thinking that the point now raised had been deliberately passed sub silentio by counsel in. order that the point of substance might be decided. He went on to say that the point had to be decided by the earlier court before it could make the order which it did nevertheless, since it was decided "without argument, without reference to the crucial words of the rule and without any citation of authority", it was not binding and would not be followed. Precedents sub silentio and without argument are of no moment. This rule has ever since been followed. One of the chief reasons for the doctrine of precedent is that a matter that has once been fully argued and decided should not be allowed to be re-opened. The Light accorded to dicta varies with the type of dictum. Mere casual expressions carry no weight at all. Not every passing expression of a judge, however, eminent, can be treated as an ex-cathedra statement, having the weight of authority.
Recently again in Union of India v. Raghubir Singh , after exhaustive study with regard to law of precedent and treating the history thereof the Supreme Court laid down the law relating to value of precedent but stated in no uncertain terms that in appropriate case, particularly when the earlier decisions of the court or the relevant provisions of the law were not brought to the notice of the Court, the judgment rendered therein shall not be binding upon a subsequent Bench.
91. Salmond on Jurisprudence (12th Edition) at page 153 states as to when a judgment passes in sub silentio.
92 In Goodyear India Ltd. and Anr. v. State of Haryana and coffer analogous cases reported in 1990(2) SCC page 72 at page 96, it was held : "A decision on a question which has not been argued cannot be treated as a precedent."
93. For the additional reasons aformentioned I concur with my learned brother S. Roy, J. that Uday Banerjee's case has not been correctly decided and the same has to be overruled, and consequently it must be held that the Civil Revision application is not maintainable.
94. However, it is needless to point out that in this view of the matter the petitioner shall be entitled to prefer an appeal before a competent court.